Anaya Nolan
There are two main types of legal systems in the world: Common Law and Civil Law. Common law is a body of unwritten laws based on legal precedents established by the courts. Common law systems place great weight on precedent and rely on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a case. Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is derived from Roman law and is based on abstractions, formulating general principles and distinguishing substantive rules from procedural rules. While civil law takes the form of legal codes, common law comes from uncodified case law that arises as a result of judicial decisions.
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What You'll Learn
Historical origins
The common law system is based on unwritten laws and judicial precedents that come from uncodified case law. It originated in medieval England and is used in countries that were formerly under English rule, including the United States. In common law countries, judges can create laws in certain areas.
In contrast, civil law is primarily based on legal codes and statutes. It is derived from the Corpus Juris Civilis, but has been influenced by Napoleonic, Germanic, canonical, feudal, and local practices, as well as doctrinal strains such as natural law, codification, and legal positivism. Civil law is often associated with continental Europe and other parts of the world, including Japan, China, Taiwan, and Korea.
The roots of common law can be traced back to medieval England, where it evolved from a combination of local customs and traditions. Over time, these customs and traditions were consolidated into a common body of law, known as the jus commune, which unified canon law and Roman law, with some influence from feudal law. This jus commune formed the basis of the common law system, which was then spread to other parts of the world through colonisation and legal emulation.
Civil law, on the other hand, has its origins in Roman law. Roman law served as a secondary source that was applied when local customs and laws were lacking in a particular area. As Roman law was a common legal tradition in Europe, it gradually became the primary lens through which local laws were interpreted and evaluated. The work of civilian glossators and commentators played a crucial role in developing and spreading civil law, creating a shared legal language and scholarship across Europe.
Over time, civil law was heavily influenced by Napoleonic, Germanic, canonical, feudal, and local practices, resulting in the civil law system known today. This system is characterised by its comprehensive codification of laws, where codes are intended to state the law coherently and comprehensively, allowing for major reforms or new beginnings.
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Geographical prevalence
Common law is prevalent in many countries that were formerly under English rule, including the United States. Within the US, 49 states and the federal government follow common law, with Louisiana being the only state that does not. Louisiana's legal system is instead based on French and Spanish civil codes, although it has converged considerably with American law, especially in its public law, judicial system, and adoption of certain legal devices of American common law.
Common law is also used in the United Kingdom, including England and Wales.
Civil law, on the other hand, is prevalent in much of continental Europe and elsewhere in the world. It is the legal system of choice in most European countries, with the exception of England and Wales. Civil law has also influenced the legal systems of some former European colonies, such as Taiwan and Korea, which were strongly influenced by the Japanese legal system, which in turn was modelled after European civil law.
In some jurisdictions, both common law and civil law have some influence. For example, in the United States, there are legal codes in every state, and civil law can also be found within common law jurisdictions, as it covers disputes between individuals or organizations.
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Judicial precedents
Judicial precedent, or stare decisis, is a key feature of common law systems. This means that past judicial decisions form the basis of evaluation for future cases. Common law, or case law, is a body of unwritten laws based on these precedents. In common law systems, judges can make laws in certain areas, and their decisions are recognised as legally binding.
In contrast, civil law systems are based on legal codes. Civil law is derived from the Corpus Juris Civilis, but has been influenced by Napoleonic, Germanic, canonical, feudal, and local practices. Civil law proceeds from abstractions, formulating general principles and distinguishing substantive rules from procedural rules. It holds case law secondary and subordinate to statutory law.
In civil law systems, legislators (formerly monarchs, now often parliament) draft laws and write them into the code. Courts are required to follow this code, but their interpretations of it are not binding. This means that civil law codes must be constantly changed, as the precedent of courts is not binding. In some civil law jurisdictions, the judiciary does not have the authority to invalidate legislative provisions.
While common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent. Common law countries include the US and UK, while civil law is used in most of Europe and other parts of the world.
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Contract provisions
Civil contracts are typically more streamlined and rely on codified principles, while common law contracts are often more detailed and rely on precedent and specific clauses to mitigate ambiguity. Civil law systems tend to have extensive default rules that apply in the absence of specific provisions, whereas common law systems are less prescriptive, and everything is permitted unless expressly prohibited by law.
In civil law systems, there is less emphasis on setting out all the terms governing the relationship between the contracting parties in the contract itself. This is because inadequacies or ambiguities can be remedied or resolved by operation of law. In other words, civil law judges interpret contracts based on the presumed intent of the parties and considerations of fairness, even if this requires departing from the contract's wording. In contrast, common law judges tend to interpret contracts based solely on the contract text and past judicial decisions.
Civil contracts are private agreements in which the involved parties voluntarily assume obligations or grant rights. These agreements are fundamental to civil law systems and cover a wide range of personal and commercial transactions, such as the sale of goods, rental agreements, services, partnerships, or family-related matters. They are typically used in private relationships and are subject to the general provisions of a civil code. Civil agreement contracts are commonly used to resolve disputes between two individuals or businesses and can also be employed in divorces or lawsuits involving properties.
In common law countries, judicial decisions are binding precedent, and extensive freedom of contract is allowed. Few provisions are implied into the contract by law, although provisions seeking to protect private consumers may be implied. In civil law systems, many provisions are implied into a contract by law, and parties cannot contract out of certain provisions. For example, in France, the law makes void any attempt to override the contracting authority's ability to unilaterally cancel a contract. Some civil law codes also contain mandatory notice periods before termination for breach of contract that cannot be avoided.
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Judge appointments
Civil law and common law systems differ in their geographical and historical origins, with common law systems based on medieval England, and civil law systems based on Roman and Napoleonic French law. Common law countries include the US and the UK, while civil law is the system used in most of Europe. In common law countries, judges can make laws in certain areas, and in some cases, they can decide on a present creation of a common law if nothing in the past helps explain the current situation.
In common-law countries, judges are usually appointed by the executive, and this is the case for lower and higher courts. Countries that use this method include the United Kingdom, the United States, Canada, Australia, and India. In the US, federal judges are appointed by the President and confirmed by the Senate, and they hold their office during "good behaviour", which means they have a lifetime appointment unless impeached. Magistrate judges are appointed by district judges for a renewable term of eight years.
In some common-law countries, such as Italy, the executive, legislative, and judicial branches may share appointments. In Colombia, supreme court justices are chosen by members of the court from a list of candidates provided by the Consejo Superior de la Judicatura.
In civil-law countries, examination-based training systems are prevalent for selecting judges. Countries that use entrance exams and training programs to select their judges include France, Germany, Italy, and Japan. In Switzerland, federal judges are elected by parliament, and in Japan, supreme court justices are appointed by the government but reviewed in a popular referendum every ten years.
In some civil-law countries, such as Bolivia and Mexico, judges are directly elected by the people.
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Frequently asked questions
Civil law is a comprehensive, codified set of legal statutes created by legislators, which takes the form of legal codes. Common law, on the other hand, is a body of unwritten laws based on legal precedents established by the courts and comes from uncodified case law.
Countries following civil law are typically former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern Europe, and East Asia. Common-law countries, meanwhile, are typically those that were former British colonies or protectorates, including the United States.
In common law, there are few provisions implied into a contract, so it is important to set out all the terms governing the relationship between the parties in the contract itself. In civil law, there are more provisions implied, so the contract can be shorter.
Common law places great weight on precedent, with judges recognising prior court decisions as legally binding. Civil law judges tend to give less weight to precedent, and hold case law secondary and subordinate to statutory law.
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